Hopkins v. Parole Bd.

• Citation: 604 N.W.2d 686,237 Mich. App. 629
• Decision Date: 18 January 2000
• Docket Number: Docket No. 213927.
• Parties: Tyrrell HOPKINS, Petitioner-Appellee, v. MICHIGAN PAROLE BOARD, Respondent-Appellant, and Oakland County Prosecutor, Intervening Appellant.
• Court: Court of Appeal of Michigan (US)

604 N.W.2d 686

237 Mich. App. 629

Tyrrell HOPKINS, Petitioner-Appellee, v. MICHIGAN PAROLE BOARD, Respondent-Appellant, and Oakland County Prosecutor, Intervening Appellant.

Docket No. 213927.

Court of Appeals of Michigan.

Submitted July 13, 1999, at Detroit.

Decided September 24, 1999, at 9:00 a.m.

Released for Publication January 18, 2000.

Stuart G. Friedman, Ann Arbor, for the petitioner.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Bethany L. Scheib, Assistant Attorney General, for the Parole Board

David G. Gorcyca, Prosecuting Attorney, and Diane Dickow D'Agostini, Assistant Prosecuting Attorney, Pontiac, for the Oakland County Prosecutor.

Before GRIBBS, P.J., and SMOLENSKI and GAGE, JJ.

GAGE, J.

Respondent Parole Board appeals by leave granted¹ a circuit court order reversing its decision to deny petitioner Tyrrell Hopkins parole. We reverse.

On April 21, 1988, petitioner pleaded guilty to charges of armed robbery, M.C.L. § 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; MSA 28.424(2). He received a sentence of two to twenty years' imprisonment for the armed robbery conviction, to be served consecutively to a two-year sentence for the felony-firearm conviction. After becoming eligible for parole, petitioner was denied parole several times.

Petitioner's most recent parole eligibility determination occurred on January 29, 1998, when respondent again denied petitioner parole. In a Notice of Action, respondent explained that, "having considered the facts and circumstances including the prisoner's mental and social attitude," it lacked reasonable assurance that petitioner did not represent a menace to society or the public safety. Respondent further listed the following reasons supporting its decision: (1) petitioner's crime was assaultive in nature, arose in a multiple-offender situation, and involved a dangerous weapon, (2) petitioner failed in prior postconviction court-ordered juvenile programs, (3) petitioner had a history of substance abuse, and (4) petitioner's social history indicated an unstable domestic history. Respondent recommended that to facilitate parole in the future, petitioner should "[d]emonstrate positive change by working towards reduction in security classification," and "[p]rovide additional demonstration of positive prison behavior during the [twelve-month] period of the continuance."

On February 25, 1998, petitioner sought leave to appeal to the Oakland Circuit Court, which granted leave. On August 5, 1998, the circuit court found that respondent had abused its discretion in denying petitioner parole. The court reasoned that the four factors stated in the Notice of Action were insufficient to support the parole denial because they were based on facts that were ten years old and therefore had little or no bearing on whether petitioner would pose a danger to society if released on parole. The court additionally noted that "in every instance Petitioner was considered for parole, the Parole Board member who conducted the [predecision] interview voted to grant parole." Thus, the court reversed respondent's decision and remanded to respondent with instructions that it parole petitioner within twenty-eight days. On August 31, 1998, the circuit court denied respondent's motion for a stay of the court's order that it grant petitioner parole. On the same day, however, this Court granted respondent's motions for immediate consideration and leave to appeal, and also granted a stay of the circuit court's order reversing respondent's parole denial.

I

Respondent and the prosecutor now argue that the circuit court erred in finding that respondent abused its discretion in denying petitioner parole. Respondent and the prosecutor contend that the circuit court failed to consider petitioner's entire record, which they argue supports respondent's conclusion that it lacked reasonable assurance that petitioner, if released, would not become a menace to society or to the public safety.

The Legislature has entrusted to the Parole Board the decision whether to grant or deny parole. MCL 791.234(8); MSA 28.2304(8). The Parole Board's decision whether to parole a prisoner is reviewed for a "clear abuse of discretion." MCR 7.104(D)(5)(b); In re Parole of Roberts, 232 Mich.App. 253, 257, 591 N.W.2d 259 (1998). Generally, an abuse of discretion is found where an unprejudiced person, considering the facts on which the decisionmaker acted, would say there is no justification or excuse for the ruling. People v. Ullah, 216 Mich.App. 669, 673, 550 N.W.2d 568 (1996). The board's discretion is limited, however, by statutory guidelines, and whether it abused its discretion must be determined in light of the record and these statutory requirements. In re Parole of Johnson, 219 Mich.App. 595, 598, 556 N.W.2d 899 (1996). First and foremost, the board may not grant a prisoner liberty on parole until it "has reasonable assurance, after consideration of all of the facts and circumstances, including the prisoner's mental and social attitude, that the prisoner will not become a menace to society or to the public safety." MCL 791.233(1)(a); MSA 28.2303(1)(a). An aggrieved party bears the burden of demonstrating an abuse of discretion, and the reviewing court may not substitute its judgment for that of the Parole Board. MCR 7.104(D)(5); Wayne Co. Prosecutor v. Parole Bd., 210 Mich.App. 148, 153-154, 532 N.W.2d 899 (1995).

While the circuit court found that the four reasons stated by respondent were insufficient to support respondent's decision, it failed to consider the portions of petitioner's prison record that respondent submitted for consideration pursuant to MCR 7.104(D)(4)(c). In the event of an appeal of a Parole Board decision, MCR 7.104(D)(4)(c) specifically requires that respondent forward to the circuit court "the prisoner's central office file at the Department of Corrections, and any other documents considered by the parole board in reaching its decision." Our review of petitioner's prison record reveals that since his incarceration in 1988, he has received at least sixty-eight misconduct citations. Ten of these citations were issued within the last five years for "major misconducts" including insolence, threatening behavior, disobeying a direct order, assault and battery, and interference with administration of rules. His prison record further indicates that during the last five years he received two security classification increases and that petitioner has a "Very High" assaultive risk classification and a "High" property risk classification. Respondent clearly contemplated this information in determining whether to grant petitioner parole; this information appears within a parole guideline scoresheet prepared within two weeks before respondent's decision. Furthermore, respondent's concern regarding petitioner's prison record is reflected in respondent's Notice of Action recommendations that petitioner reduce his security classification and demonstrate additional positive prison behavior. Considering petitioner's significant prison misconduct together with the violent and assaultive nature of his underlying convictions, we cannot conclude that respondent abused its discretion in finding that no reasonable assurance existed that petitioner would not become a menace to society or to the public safety if released on parole. While petitioner's prison behavior may have begun to improve since his previous parole denial, we do not find that respondent unjustifiedly required that petitioner evidence a longer period of satisfactory prison behavior before respondent releases him on parole. Because the circuit court improperly substituted its judgment for that of respondent, Wayne County Prosecutor, supra, we reverse the circuit court order reversing respondent's denial of petitioner's parole.

II

Respondent and the prosecutor also assert that, even assuming respondent abused its discretion in denying petitioner parole, the circuit court lacked authority to order respondent to release petitioner on parole because such an order violates the constitutional separation of powers doctrine.² Whether a violation of the separation of powers doctrine has occurred is a question of law that we review de novo. People v. Sierb, 456 Mich. 519, 522, 581 N.W.2d 219 (1998). Given our decision to reverse the circuit court's order, it is unnecessary that we decide this issue. We will address the issue, however, because it is of public significance and is likely to recur in the future.³ Meyers v. Patchkowski, 216 Mich.App. 513, 519, 549 N.W.2d 602 (1996); People v. Briseno, 211 Mich.App. 11,17, 535 N.W.2d 559 (1995). Moreover, although the trial court did not explicitly rule on this issue, we may nonetheless consider it for the first time on appeal because it is a question of law and the parties have presented all the necessary facts. D'Avanzo v. Wise & Marsac, PC, 223 Mich.App. 314, 326, 565 N.W.2d 915 (1997).

The Michigan Constitution provides for the separation of the three branches of government as follows:

The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution. [Const. 1963, art. 3, § 2.]

This separation of powers intends to preserve the independence of the three branches of government. In re 1976 PA 267, 400 Mich. 660, 662, 255 N.W.2d 635 (1977). "`[W]here the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.' " Soap & Detergent Ass'n v. Natural Resources Comm., 415 Mich. 728, 752, 330 N.W.2d 346 (1982) (emphasis in original), quoting The Federalist No. 47 (J. Madison). The separation of powers doctrine does not,...